Court File and Parties
COURT FILE NO.: CR-15-40000652-0000 DATE: 20170116 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – LEON MCINTYRE Applicant
COUNSEL: L. Pasquino, for the Crown D. Sid Freeman, for the Applicant
HEARD: November 7-8, 2016
RULING ON THE CONSTITUTIONAL CHALLENGE TO SECTIONS 344(1) AND 719(3) OF THE CRIMINAL CODE
S.A.Q. AKHTAR J.
I. OVERVIEW
[1] Leon McIntyre pleaded guilty to the following offences:
(i) Robbery while using a restricted firearm contrary to s. 343 (d) of the Criminal Code, R.S.C. 1985, c. C-46; (ii) Assault causing bodily harm contrary to s. 267 (b) of the Criminal Code; (iii) Possession of a loaded restricted firearm when not the holder of an authorization or licence contrary to s. 95(1) of the Criminal Code; (iv) Possession of a restricted firearm knowing that he was not the holder of a licence contrary to s. 92(2) of the Criminal Code; (v) Pointing a firearm contrary to s. 87(1) of the Criminal Code; (vi) Operating a vehicle in a dangerous manner contrary to s. 249(1) (a) of the Criminal Code; and (vii) Possession of a firearm while prohibited contrary to s. 117.01(1) of the Criminal Code.
[2] As part of the sentencing hearing, Mr. McIntyre brought an application requesting that this court declare the following sections of the Criminal Code unconstitutional, alleging that they violate sections 7 and 12 of the Charter of Rights and Freedoms:
(1) Section 344(1) of the Criminal Code - the mandatory minimum sentence provision for the offence of robbery whilst using a restricted or prohibited firearm; and (2) Section 719(3) of the Criminal Code containing the provisions governing the amount of credit to be given in respect of pre-sentence custody.
[3] On 2 December 2016, I sentenced Mr. McIntyre: see R. v. McIntyre, 2016 ONSC 7498. Prior to delivering judgment, I orally dismissed both of Mr. McIntyre’s constitutional challenges and indicated that detailed reasons would follow. These are those reasons.
Factual Background to the Offence
[4] On 18 August 2014, at approximately 7:20 p.m., the victim in this case, Mahammad Malik, stood in the driveway of his house, situated at 75 Cherrylawn Avenue in Toronto. Mr. Malik was repairing the rear door lock of his car, a silver Mercedes Benz C32. He was being watched by his four-year-old son, who was sitting on the front porch of the house.
[5] Mr. McIntyre and another youth, hereinafter referred to as D.R., entered the driveway with the intention of stealing Mr. Malik’s car. Mr. McIntyre was armed with a loaded handgun. As the victim was kneeling at the rear door, Mr. McIntyre and D.R. approached him from behind and ordered him to hand over his keys. Mr. Malik attempted to stand and a struggle followed, with both intruders attempting to pry the car keys from Mr. Malik’s hands.
[6] During the struggle, Mr. McIntyre pointed the handgun towards Mr. Malik’s lower torso before using it to strike him on the side of the head near his temple. D.R. managed to obtain the keys, causing a cut to Mr. Malik’s hand which subsequently required two stitches. During the attack, Mr. Malik lost consciousness for several seconds but revived sufficiently to see Mr. McIntyre drive his vehicle away at a high speed with D.R. in the passenger seat.
[7] Mr. Malik’s cries for help were heard by his wife as well as several neighbours, and emergency services were called. The details of Mr. Malik’s vehicle were circulated to the police by radio. Shortly thereafter, two officers in an unmarked car noticed a vehicle matching the description and plates of the car travelling eastbound on Finch Avenue West. They followed the car and observed it being driven at speeds of up to 160-170 km/h when the highway limit was 100 km/h. Mr. McIntyre, an unlicensed driver, was further seen driving on the off-ramp to the highway at 120 km/h when the posted speed limit was 70 km/h and on busy streets in a manner dangerous to the public.
[8] Wandering into heavy traffic, the car slowed and was caught by police. Mr. McIntyre was arrested in a high-risk takedown, with the officers drawing their firearms on a busy road with numerous road users in close proximity. D.R., who was also placed under arrest, advised officers that he was in possession of a handgun, leading to a search which revealed a black 9mm Beretta handgun in his waistband. There is no dispute that this handgun is a restricted firearm within the definition of the Criminal Code and is capable of being discharged. Nor is it disputed that the gun was loaded with a magazine containing nine rounds of 9mm Luger ammunition.
[9] Mr. McIntyre’s clothing was seized for forensic examination and DNA extracted from blood located on it was found to be a match for Mr. Malik.
[10] Mr. Malik suffered a gash to the head which required thirteen staples to close. He also sustained swelling to his left eye and a concussion. In his Victim Impact Statement, Mr. Malik described the lasting consequences of the assault: his finger is permanently damaged, causing him pain on a daily basis and affecting his work and physical activities, such as going to the gym. As a result of the offence, he also suffers from nightmares, anxiety, and severe stress. Mr. Malik was unable to return to work until October 2014, over a year after the offence date.
II. THE CHALLENGED SECTIONS
[11] Section 343 of the Criminal Code defines the offence to which Mr. McIntyre pleaded guilty:
- Every one commits robbery who (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (c) assaults any person with intent to steal from him; or (d) steals from any person while armed with an offensive weapon or imitation thereof.
Section 344 of the Criminal Code, the sentencing section of the offence, reads as follows:
344 (1) Every person who commits robbery is guilty of an indictable offence and liable (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years;
[12] Mr. McIntyre argues that s. 344(1), which imposes a minimum sentence of five years, must be struck down as contravening the two sections of the Charter set out below:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[13] Finally, Mr. McIntyre submits that once this Court finds that the impugned sections violated these Charter sections, they cannot be saved under s. 1 of the Charter as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society.
[14] The mandatory minimum penalty (MMP) in this case was introduced on 1 January 1996, when Parliament decreed that the use of a firearm in the commission of a robbery would result in a minimum sentence of four years. In 2008, the MMP was increased to a five years where the firearm used was a restricted or prohibited firearm. In all cases of robbery, however, the maximum sentence remained life imprisonment.
[15] The Supreme Court of Canada has, on only three occasions, struck down mandatory minimum sentences: R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Nur, 2015 SCC 15; and R. v. Lloyd, 2016 SCC 13. Each case involved a different sentencing section: Smith struck down the seven-year minimum in place for importing narcotics under s. 5(2) of the Narcotic Control Act. Similarly, Lloyd involved the one year minimum for the trafficking of controlled substances under s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act. Finally, in Nur, the leading case on the constitutionality of MMPs, the Court held that a three-year minimum sentence following a conviction for possession of a prohibited or restricted firearm with ammunition under s. 95(1) of the Criminal Code violated s. 12 of the Charter.
[16] The principles set out in Nur and Lloyd may be summarised as follows:
(i) A sentence will infringe s. 12 of the Charter only if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. (ii) The jurisprudence has settled on a high bar for finding that a sentence is a cruel and unusual punishment. “Grossly disproportionate” means more than merely excessive: it must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072; R. v. Ferguson, 2008 SCC 6, at para. 14; Nur, at para. 39; Lloyd, at para. 24. (iii) In order to determine the constitutionality of an impugned MMP, the Court must undertake a two-step evaluation: (a) First, the Court must determine what constitutes a proportionate sentence for the offence having regard to the principles and objectives of sentencing in the Criminal Code. In order to do this, the Court must consider the “rough scale” of the appropriate sentence. (b) Secondly, the Court must ask whether the MMP requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. The question to be answered is: in view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If the answer is yes, a finding of unconstitutionality must follow: Nur, at para. 46; Lloyd, at para. 22. (iv) In answering this question, therefore, the Court looks not just to the offender bringing the challenge, but also to the reasonably foreseeable application of the law to others who may be subject to the same provisions. In essence, stage two of the test is, in itself, a two-part test which requires the court to evaluate the fit sentence for the applicant and then go on to consider the reasonable hypothetical offender convicted of the same offence.
Nur: The First Step
[17] The “rough scale” of an appropriate sentence starts with the guiding principles of s. 718 of the Criminal Code, which reads as follows:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[18] In cases where firearms are the subject of the charge, the courts have clearly expressed that denunciation and deterrence play an important role. It cannot be emphasised enough that the possession and use of a firearm may have extremely dire consequences. Both the majority and minority opinions in Nur recognised the seriousness of gun crime and its growing concern amongst the public: Nur, at paras. 6, 131.
[19] In imposing sentences where a firearm is used in the commission of an offence, the courts have not been slow to impose lengthy sentences even for youthful adult offenders. In R. v. Uniat, 2015 ONCA 197, the Court of Appeal for Ontario upheld a seven-year sentence for an eighteen-year-old offender who had pleaded guilty to using a firearm when committing a home invasion-style robbery. Similar sentences can be found in cases such as R. v. Brown, 2015 ONCA 361, where an eighteen-year-old first-time offender received seven years for robbery with a firearm: see also R. v. Eldemire (1998), 108 O.A.C. 214; R. v. Nouri, 2015 ONSC 116; R. v. Dayes, 2013 ONCA 614; R. v. Watson, 2008 ONCA 614.
[20] A review of the sentencing case law puts the “rough scale” of sentencing on a plea to the use of a firearm in the commission of an offence between five and seven years. The MMP accordingly falls safely within the “rough scale.”
Nur: The Second Step
[21] As noted, step two of the Nur test comprises two parts: first, whether the MMP would be grossly disproportionate if applied to Mr. McIntyre; and, secondly, whether it would be grossly disproportionate if applied to a hypothetical offender convicted of the same offence.
The Application to Mr. McIntyre
[22] Dealing first with the issue of whether the MMP of five years is grossly disproportionate in the case at bar, my separate reasons for sentencing set out, in detail, why Mr. McIntyre’s actions and circumstances warranted a sentence of six years.
[23] To summarise, Mr. McIntyre committed a brutal assault on the victim, brandishing the weapon not only to provide the threat of shooting him but also using it as a physical weapon, causing him to lose consciousness. The robbery with the use of a firearm took place at the victim’s home and in front of his four-year-old son, and led to the theft of the victim’s car.
[24] It is fitting, at this point, to revisit a pre-Nur case in which the same MMP, in its pre-2008 amendment form, was challenged as being in violation of s. 12 of the Charter.
[25] In R. v. MacDonald (1998), 40 O.R. (3d) 641 (C.A.), the four-year minimum for committing robbery with a firearm was upheld. There, the offender had entered a fast food outlet and approached a clerk and demanded “all the money you have.” At the same time, he lifted his sweatshirt, revealing the butt of a gun tucked into the waistband of his pants. The clerk did not appear to understand so the offender raised his shirt once again and demanded money, which was handed over. The appellant left the store with the money and was arrested the same night. The gun was found to be an unloaded BB gun.
[26] The appellant was twenty-one-years-old at the time with one previous conviction to his name. He was found to suffer from a manic-depressive disorder. He expressed shame and remorse at the sentencing hearing, and claimed that the money he stole was to be used for rent. Despite the plea and the existence of several mitigating factors, Rosenberg J.A., writing for the Court, held that a four-year MMP was not grossly disproportionate.
[27] It should be noted that this case did not deal with a loaded, restricted, or prohibited firearm as the gun in question was a BB gun. Nor was the firearm used in any way other than as a visual threat in order to obtain the contents of the store’s till. The offence occurred not at someone’s home but a fast food establishment, and no one was beaten or hurt. In short, the facts of the case are far less serious than the case at bar. Notably, at para. 72, Rosenberg J.A. remarked: “I am not convinced that having regard to the objective gravity of any offence involving the use of a firearm, even an unloaded one, that a sentence approaching four years shocks the conscience.”
[28] It is also significant that Ms. Freeman, counsel for Mr. McIntyre, submitted that an appropriate sentence in this case was in the range of two to three years. This range is hardly a grossly disproportionate difference from the impugned MMP.
[29] In conclusion, the minimum sentence contained in s. 344(1) of the Criminal Code is not grossly disproportionate when applied to Mr. McIntyre and the instant offence.
The Foreseeable Application to Others
[30] I turn now to evaluate the reasonably foreseeable application of the MMP on others convicted of the same offence.
[31] The Supreme Court of Canada warned of the risks of a minimum sentence that “casts its net over a wide range of potential conduct”: Nur, at para. 82; Lloyd, at para. 27. In Nur, the Court approved the notion, voiced by Doherty J.A. in the Court of Appeal of Ontario’s decision, of a wide spectrum of conduct ranging from “true crime” at one end to a purely “regulatory offence” at the other end. It is the latter end of the spectrum where there is a lack of blameworthiness that causes a minimum sentence to become at risk constitutionally.
[32] By way of example, in Lloyd, at para. 32, McLachlin J. pointed out the drawbacks of the minimum sentence with respect to the MMP in the Controlled Drugs and Substances Act (CDSA):
At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of Schedule I substances, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of a Schedule I drug with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. I agree with the provincial court judge that most Canadians would be shocked to find that such a person could be sent to prison for one year.
[33] To determine whether s. 344(1) casts its net too widely, the use of reasonable hypothetical situations comes into play. Mr. McIntyre posits two situations in which he argues the MMP would result in a grossly disproportionate penalty. Before discussing those scenarios, I briefly remind myself of the principles espoused by the Supreme Court of Canada in both Nur and Lloyd when dealing with the proffered hypothetical situations.
[34] First, the enquiry must be grounded in judicial experience and common sense. The Court may review case law dealing with the same or similar offences in order to determine what is reasonably foreseeable.
[35] Secondly, reasonable foreseeability does not simply include what is likely to occur in the everyday occurrences of the law, but also situations that may reasonably arise. Findings of constitutionality should not depend on speculation.
[36] Thirdly, the hypotheticals must not be far-fetched, fanciful, or remote. Personal characteristics of a person caught by a minimum sentence may be used as a factor, but those characteristics cannot be used to construct the most innocent and sympathetic case imaginable. Otherwise, any MMP would be at risk of being declared unconstitutional.
Hypothetical #1
Two accused, A and B, approach a victim in a park in the early hours of the morning. The victim is in possession of a new pair of Air Jordan sneakers bought earlier the previous day. A demands the Air Jordans from the victim, telling him to hand the sneakers over to B. When the victim resists, A lifts his shirt and shows the victim the grip of a handgun in the waistband of his pants. B tells the victim to “Give us what we want if you know what’s good for you.” The victim hands over the Air Jordans to B. The victim suffers no injuries, the gun is not removed, and not loaded. A is a youth and, after being found guilty, receives a four-month Deferred Custody Supervision Order with one year of probation. B, an aboriginal adult offender, pleads guilty at the Superior Court of Justice, having waived his preliminary inquiry.
Hypothetical #2
A, B, and C are friends. One day while the three are talking together via telephone, A and B discuss robberies they have recently committed using a handgun someone has stored at A’s residence. A and B also discuss potential future targets. C indicates that he saw D with a new pair of Air Jordans and suggests D as a possible future target for A and B. He tells them that D can usually be found alone in the early morning hours, on weekends, walking through the alley on his way back from his girlfriend’s residence. That weekend, A and B wait for D in the alley. As D approaches them alone, A and B confront him and demand that he give them his Air Jordans. D does not comply until A lifts his shirt and shows D the grip of the handgun he has in the waistband of his pants. B tells D “Give us what we want if you know what’s good for you.” D complies and hands the Jordans to B. No injuries are incurred. The handgun is not removed from A’s waistband during the incident nor was it loaded. A and B are both just under the age of eighteen at the time of the incident. C is just over the age of eighteen. A and B are found guilty after trial and receive sentences of four months’ Deferred Custody Supervision Order with a one year period of probation. C waives his preliminary inquiry with a view to entering a guilty plea in the Superior Court. C has no prior criminal record, is aboriginal, and comes from a highly-dysfunctional family situation. Neither A or B are aboriginal.
[37] For the following reasons, I find these hypotheticals to have little persuasive value.
(a) The Unloaded, Unremoved Gun
[38] First, it should be noted that Hypothetical #1 is very similar to the facts in MacDonald with an important difference: there, the gun used was a BB gun and not an actual prohibited or restricted weapon. MacDonald, as we have seen, found a mandatory minimum sentence of four years to be constitutional. In the circumstances of Hypothetical #1, where the gun is actually a firearm, loaded or not, the offence is far more serious. The facts of Hypothetical #1 would warrant a sentence in the “rough scale” range of five to seven years.
(b) The Offender’s Aboriginal Heritage
[39] Secondly, the fact that the offender is aboriginal has little bearing on whether the sentence would be grossly disproportionate in either hypothetical. Section 718.2 (e) of the Criminal Code recognises the special status of aboriginal persons charged with criminal offences and provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” This statutory principle led to the creation of a different approach when sentencing aboriginal offenders, with an emphasis on restorative justice and a sensitivity to aboriginal heritage: R. v. Gladue, [1999] 1 S.C.R. 688.
[40] However, application of the Gladue principles does not mean that the distinction between aboriginal and non-aboriginal offenders will always result in a lesser sentence for the former. In R. v. Wells, 2000 SCC 10, at para. 42, Iaccobucci J. held that:
Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance. [Emphasis added]
[41] An example of this may be found in R. v. Harper, 2016 MBCA 64, where an aboriginal offender pleaded guilty to numerous offences including a number of counts alleging robbery with the use of a firearm. He was originally sentenced to eight-and-a-half years’ imprisonment but, on appeal by the Crown, the Court of Appeal for Manitoba increased the sentence to eleven years concurrent on all counts.
[42] I would also note that, in two pre-Nur cases, appellate courts explicitly commented on the limitation of s. 718.2(e) due to the existence of a statutory MMP.
[43] In R. v. Johnson, 2013 ONCA 177, where an aboriginal person was accused of several firearm possession offences, the Court held, at para. 63, that “there can be no denying that the five-year mandatory minimum applies to all cases, including those where s. 718.2(e) of the Code applies.” Indeed, the Court went on explain, at para. 66, that the trial judge’s “sentencing options were restricted by the fact that Johnson faced a five-year minimum prison sentence. And it was against the background of this restriction that the trial judge was obliged to consider the circumstances of the offence and the offender, including his aboriginal status.” It therefore directly rejected the argument by defence counsel, at para. 62, that “the sentencing floor should be considered differently.”
[44] In R. v. Brooks, 2012 ONCA 703, a case that involved an aboriginal person convicted of manslaughter, the Court of Appeal for Ontario ruled similarly to the court in Johnson. Given the mandatory minimum sentence in that case, the court stated, at para. 11, that the offender “had to go to the penitentiary for at least four years” and noted that “s. 718.2(e) applies in all cases, including those where there is a mandatory minimum jail term. However, the existence of a minimum, particularly one that requires a four-year penitentiary sentence, must, of necessity, limit the practical impact of s. 718.2(e)”: see also R. v. S.A., 2016 ONSC 5355.
[45] Finally, R. v. Mergle-Houle, 2014 ABQB 244 was a case that involved an aboriginal person accused of multiple offences including robbery using a firearm, which meant that s. 344(1) of the Criminal Code applied in sentencing. After acknowledging the role of the Gladue factors in terms of sentencing an aboriginal accused, the Court pointed out, at para. 47, that “[a]s noted by defence counsel, Gladue factors have no effect on a mandatory minimum sentence.” The court sentenced the offender to five years with ninety days concurrent in relation to two failures to comply.
(c) The Difference in Party Liability
[46] In Hypothetical #1, B is present when A displays the gun to the victim and the offence is committed. I find his participation as a party makes no difference to the sentence that he would receive. In my view, using the “rough scale,” both participants would expect to receive sentences in excess of five years.
[47] In Hypothetical #2, however, C is not present at the scene of the offence but acts as an abettor. The scenario appears to suggest that C is being unfairly punished despite not having any control of the use of the firearm. However, this argument fails when examined in context. First, C would only be convicted as a party to the offence if he intended the commission of the offence. If his absence raised a reasonable doubt about his knowledge that a firearm was to be used during the robbery, he could only be convicted of robbery simpliciteur and he would not be subject to the MMP. If, however, he was convicted based on his awareness of A and B’s prior history of using handguns to commit robberies, his level of guilt would rise to that of the principals and he would be sentenced accordingly.
[48] By way of comparison, in Nouri, cited above, the offender was a twenty-seven-year-old mother of two children who possessed no criminal record. She was convicted of the robbery of a jewelry store where a firearm was used. She was not present when the store was robbed but took part in the planning, played a central role in finding a make-up artist to create disguises for those who actually robbed the store, provided advice on how they should be disguised, and then drove the robbers to the scene. The Crown argued her guilt under s. 21(1) (b) of the Criminal Code and a jury convicted her. She was sentenced to six years’ imprisonment.
(d) The Disparity Between Adult and Youth Offences
[49] The scenarios also suggest gross disproportionality due to the different sentences imposed because some of the offenders are adults and others are youths. It is now settled law that parity cannot be applied between youth and adults due to the different sentencing regimes that they are subject to: R. v. Wobbes, 2008 ONCA 567, at paras. 72–73; R. v. Upshaw, 2013 NSSC 160, at paras. 30–34.
Conclusion
[50] The major objection to a minimum sentence is the fact that it might cast a net so wide that it captures acts that do not merit the blameworthiness envisaged by the statutory scheme. As discussed previously in Nur and Lloyd, the Supreme Court of Canada identified the culpability spectrum existent within an offence. In Nur, the MMP was struck down because it captured not only the “true crime” offences but any quasi-regulatory offences related to the possession of a firearm. In Lloyd, the Supreme Court of Canada held that the MMP enshrined in the CDSA would penalise not only those involved in the drug trade but also individuals who “administer, give, transfer, send or deliver the substance,” notwithstanding their intention. These MMPs cast so wide a net that they could not be justified.
[51] This is not the case with s. 344(1) (a) of the Criminal Code: it is a “true crime” offence. It operates only when (a) the offender has committed a robbery; (b) a firearm was used in the commission of that robbery; and (c) that firearm is classified as either restricted or prohibited as defined by s. 84 of the Criminal Code. There is no danger of an offender being convicted and sentenced for actions of a near regulatory nature. Nor does it capture a large number of situations where an offender’s culpability drifts towards the lesser-end of the blameworthiness spectrum. For a similar analysis, see R. v. Oud, 2016 BCCA 332, where the Court of Appeal for British Columbia upheld the constitutionality of the MMP for the offence of intentionally discharging a firearm contained in s. 244(3) (b) of the Criminal Code.
[52] In both Nur and Lloyd, the Court emphasised Parliament’s right to make sentencing policy and set a penal floor for offences. However, as McLachlin C.J. made clear in Lloyd, at para. 35, “[i]f Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentence.”
[53] In my view, s. 344(1) is of sufficient specificity and narrow reach that it complies with these sentiments.
[54] Accordingly, the application to have s. 344(1) (a) of the Criminal Code declared unconstitutional is dismissed.
II. THE CONSTITUTIONAL CHALLENGE TO THE PRE-SENTENCE CUSTODY PROVISIONS
[55] Mr. McIntyre also challenges the pre-sentence custody provisions contained in s. 719(3.1) of the Criminal Code, which limits pre-sentence custody to an effective rate of 1.5 for every day spent in custody.
[56] He argues that the provision violates sections 7 and 12 of the Charter by failing to provide proportionality in sentencing to the offence.
Pre-Sentence Custody Credit Prior to 2009
[57] Prior to statutory amendments made by the Truth In Sentencing Act, S.C. 2009, c. 29 (TISA), a sentencing judge had discretion in determining the amount of credit where the offender had, prior to sentence, been incarcerated. The standard discount became two days’ credit for each day spent in custody leading up to sentence. Whilst never formally enshrined, this practice found favour at the appellate level: R. v. Wust, 2000 SCC 18, at para. 45; R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.). The credit was designed to compensate for disadvantageous conditions, such as a lack of programming as well as the absence of a remission mechanism that would apply only after an offender had been sentenced.
[58] In the years leading up to the TISA, the 2:1 credit began to increase in cases where the sentencing judge was presented with evidence that an offender had suffered extremely harsh conditions whilst awaiting sentence: see, for example, R. v. Kravchov (2002), 4 C.R. (6th) 137; R. v. Jabbour, [2001] O.J. No. 3820; R. v. Permarsar, [2003] O.J. No. 5420.
[59] The dramatic increase in pre-sentence credit attracted the attention of Moldaver J.A. (as he then was) in R. v. J.B. (2004), 187 O.A.C. 307, where he expressed concern in a footnote, stating:
The Crown did not challenge the four-year figure. For my part, I find it disturbing that eighteen months of actual pre-trial custody can translate into a credit of four years. It seems to me that lately, the issue of credit for pre-trial custody is taking on a life of its own. Unchecked, it can skew and even swallow up the entire sentencing process. In short, it may be time to revisit the manner in which credit for pre-trial custody is assessed. However, since the matter was not raised or argued, it is best left for another day.
The Statutory Section
[60] Enter the TISA, Parliament’s pronouncement on the issue creating a new regime of pre-sentence custody credit which amended s. 719(3) of the Criminal Code to read as follows:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
Exception
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
Thus, the 2:1 “norm” was replaced by a credit of 1:1 unless “the circumstances” justified an enhanced rate of 1.5:1 credit.
Pre-Sentence Custody After Summers
[61] On a plain reading of s. 719(3.1), it would appear that Parliament intended the “norm” to be credit awarded on a 1:1 ratio with a further exception of 1.5:1 if circumstances justified the increase. In R. v. Summers, 2014 SCC 26, the Supreme Court of Canada clarified the position: “circumstances” justifying enhanced credit under s. 719(3.1) could include loss of eligibility for early release and parole. Since a pre-sentence prisoner could only take advantage of the early release mechanism after conviction and sentence, the 1.5:1 award, in effect, became the new “norm.”
The Applicant’s Arguments
[62] Mr. McIntyre argues that restricting the amount of pre-sentence credit to a ratio of 1.5:1 is grossly disproportionate and so excessive as to outrage standards of decency. For the following reasons, I disagree.
[63] First, it can hardly be said that the reduction of 0.5 in the pre-sentence credit ratio, from the previous 2:1 standard, is grossly disproportionate in the manner described by Nur and Lloyd.
[64] Secondly, I reject Mr. McIntyre’s implicit submission that the previous 2:1 ratio was an automatic award of credit. In cases preceding the statutory amendments, courts had awarded reduced credit where it was justified. For example, in R. v. Francis (2006), 79 O.R. (3d) 551, the accused was found guilty of manslaughter and the trial judge imposed a sentence resulting in a credit that was calculated at 1.33:1. The rationale for doing so was the sentencing judge’s view that the offender was a serious threat to society and unlikely to obtain parole. Upholding the decision, the Court of Appeal for Ontario found the departure from the normal practice to be a reasonable exercise of discretion.
[65] Thirdly, I reject Mr. McIntyre’s submission that the previous 2:1 credit assumed that the institutions at which an offender was housed satisfied minimum standards and was not meant to compensate harsh conditions. In Francis, at para. 14, the court listed the reasons for which 2:1 credit was awarded:
Three considerations inform the rationale for giving enhanced credit for pre-sentence custody. They are: (1) that other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account time spent in pre-sentence custody; (2) that there are few rehabilitative, educational or retraining programs available in detention centres; and (3) that the conditions in detention facilities are often more crowded and more onerous than in correctional facilities. [emphasis added]
The same list and justification was provided in R. v. J.E.D., 2007 ONCA 385, at para. 1.
[66] Fourthly, I find Mr. McIntyre’s assertion that the 1.5:1 credit is “entirely consumed” by considerations relating to lack of remission to be misplaced. At para. 72 of Summers, the Supreme Court of Canada made clear that the 1.5:1 credit also covered the harsh conditions inherent in institutional custody by stating:
This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. However, this does not mean that credit should be scaled back in order to "leave room at the top" of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases. It should not lead judges to deny or restrict credit when it is warranted.
[67] The Court went on to say, at para. 73, that persons who had suffered “particularly harsh treatment” could seek other avenues of redress, such as s. 24(1) of the Charter, to reduce their sentence. This fact defeats Mr. McIntyre’s submission that s. 719(3.1) is an unjust fettering of the courts’ discretion in awarding pre-sentence custody credit.
[68] I also reject the notion that s. 719(3.1) is an arbitrary limitation under s. 7 of the Charter. To avoid being arbitrary, there must be a rational connection between the law and its effects: Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, 2013 SCC 72, at para. 111. The sentencing principles behind the section were to enhance public confidence in the justice system and make the process of credit transparent to the public: Summers, at paras. 52–53; Safarzadeh-Markhali, 2016 SCC 14, at para. 34. As the elected law-maker of this country, Parliament is entitled to pursue these goals. Accordingly, I find no arbitrariness in the operation of the challenged section.
The Application of Nur and Lloyd.
[69] Moreover, Mr. McIntyre seeks to characterise the pre-sentence custody regime as a punishment and subject, therefore, to a s. 12 analysis. I cannot agree with that submission. It is the sentence that is imposed upon an individual that is a punishment. The restriction placed by s. 719(3.1) is simply a limit on the discount applied to the sentence.
[70] If I am wrong in my conclusion that the limit on pre-sentence custody set out in s. 719(3.1) does not constitute a punishment, I would still hold that the statutory pre-sentence conviction regime would not result in the imposition of a cruel and unusual punishment on other individuals or be grossly disproportionate in its application.
[71] In sentencing Mr. McIntyre, I have already explained why I find that enhanced credit of 1.5:1 is constitutionally appropriate in his circumstances.
Pre-sentence Custody Hypothetical
[72] The hypothetical described by Mr. McIntyre in arguing this application is as follows:
A and B are charged as co-accused. A is able to secure bail within days of his arrest, the conditions of which are strict house arrest but permit him to be away from his residence only in the presence of a surety. B, who is aboriginal and comes from a dysfunctional background, is unable to secure bail and is therefore remanded into custody. Whilst awaiting trial, B experiences a number of days where he is “triple bunked” and has to endure institutional lockdowns. In some cases, these events coincide. B is offered the ability to go outside to the yard for approximately one quarter of the day. Both A and B are convicted and sentenced to nine years. The sentencing takes place three years after the arrest and A is given a credit of six months for the house arrest conditions that he was subject to during his bail. As a result, A spends six months less in custody than B.
Once again, I find this hypothetical to be unpersuasive.
[73] The first observation I make is that if A’s pre-sentence credit of six months is awarded, it would be because the sentencing judge found his house arrest conditions to be so restrictive that they were the equivalent of custody. If that was the case, the argument that A endured six months “less” custody is specious. Secondly, the six-month differential between A and B is hardly a “grossly disproportionate” amount and, as set out above, was noted as a potential scenario by the court in Summers. Thirdly, the fact that an offender is aboriginal will be taken into account at the sentencing stage when a judge will be obliged to follow the principles set out in Gladue and s. 718.2(e) of the Criminal Code. The cap on pre-sentence custody does not affect that sentencing regime or distort its results.
[74] Finally, and most conclusively, the answer to Mr. McIntyre’s argument is to be found in para. 73 of Summers, and in R. v. Duncan, 2016 ONCA 754, at para. 6, where it is made clear that “particularly harsh” conditions endured in pre-sentence custody could be remedied through a reduction in sentence using s. 24(1) of the Charter. I note that McMahon J. came to a similar conclusion in R. v. Arviko, (29 April 2015), Toronto, unreported (Ont. Sup. Ct.) when he also found s. 719(3.1) to be constitutional.
[75] For these reasons, Mr. McIntyre’s application to have s. 719(3.1) declared unconstitutional is dismissed.
S.A.Q. Akhtar J.